The Family Factor

Weighing The ‘Family Factor’ In Nursing Home Neglect Cases
By Michael Dayton

Before heading to trial with a nursing home neglect action, Spartanburg attorney Gary W. Poliakoff offers this advice: think about the family.

“The family factor is more unique to nursing homes than other kinds of cases,” Poliakoff told Lawyers Weekly. “A loving family can overcome a marginal liability situation. And a family that showed no care or concern can damage the strongest compelling case of liability.”

Poliakoff, who reported a $1.05 million nursing home verdict to Lawyers Weekly in January (see Jan. 9, 2006 Lawyers Weekly), said the jury’s potential view of the family can tip the scale in favor of trial or settlement.

“Both the plaintiffs’ attorneys and the defense attorneys look at that as a significant issue in nursing home cases,” Poliakoff said.

Poliakoff will discuss taking a case to trial at an April 25 CLE in Columbia, “Protecting our Elderly: Assessing Nursing Home Malpractice Accountability in South Carolina.”

In the typical nursing home case, the elderly resident is deceased or incompetent and not in the courtroom, Poliakoff said. That puts jurors’ focus squarely on the remaining family members.

Where the resident has died, the survivors often press claims for loss of consortium, loss of parental advice and guidance, loss of companionship and mental anguish.

With those kinds of emotional damages at stake, it’s natural for the jury to ask whether the family members had close ties to the elderly patient, according to Poliakoff.

“Jurors tend to look at how often the family members visited, and how involved they were in the care of the patient,” he said.

Nursing home records will reflect their level of participation, Poliakoff said.

“They’ll show not only visits by the family but their involvement in developing a care plan,” Poliakoff said. “For example, when a new patient enters a nursing home, the home is supposed to develop a care plan based on the patient’s specific needs. As the plan is being developed and put together, there will be a lot of notes and records on what involvement the family had.”

Other evidence of strong family bonds includes cards, letters, photos and videotapes.

“We ask the family to bring in all of those — anything that shows their communication and love,” Poliakoff said. “When you get a family that can’t find but one or two snapshots of their loved one, you get suspicious that they didn’t have that much involvement. On the other hand, some families will bring in reams of photos and cards. A family with a caring relationship will pick up their loved one on holidays and special events and take pictures of the patient with the kids and grandkids.”

Many families shoot videotape or digital movies, which can be turned into effective settlement materials for pre-trial mediations, Poliakoff said.

“In some of these cases, we’ve put together pretty good packages that have photographs and videotape showing the nursing home patient interacting with the family, and especially the young kids,” Poliakoff said. “But the lack of that evidence can be compelling on the other side.”

The likability and appearance of the family are key issues that Poliakoff weighs. Factors that can influence the jury include education and criminal records.

“Will the family earn jury respect and sympathy — or will the jury by irritated by them?” Poliakoff said. “Poor education you certainly can overcome because people can still have great concern for their family members and great efforts to participate with low education. So that’s a lesser factor. But an arrest record, depending on the charges, can be very harmful.”

Poliakoff handled one case where the nursing home’s alleged liability was compelling but the two surviving children had significant arrest records.

“That was a big detriment to the case,” he said. “The resident had a spleen that was bleeding. She had intense stomach pain, and we alleged the nursing home didn’t properly assess her or evaluate her and didn’t bring in a physician, but instead kept giving her more pain medication. At the end of seven days, finally, she was taken to a hospital where it was determined her spleen had been bleeding for a week. Surgery was done but she never recovered.”

That case settled the night before trial, according to Poliakoff.

“The strength of the liability was issue No. 1, and the detrimental effect of the two heirs was issue No. 2 in evaluating that case,” he said. “There was plenty of room for the jury to be furious at the nursing home for lack of care, but at the same time they might be totally unsympathetic with the family.”

In the case that went to trial late last year, Clark v. White Oak Manor, Inc. (Court of Common Pleas No. 04-CP-42-1932), the estate claimed that the 85-year-old patient suffered increased dementia after an incorrect insulin dose administered by nursing home staff sent her into hypoglycemic shock, or extremely low blood sugar. The woman died about 15 months after she was given the extra insulin injection.

The parties disputed what long-term effects, if any, stemmed from the alleged negligent act.

“On the damages, the nursing home argued it hadn’t particularly injured her with the medication error and the other acts of alleged negligence that we put into evidence,” Poliakoff said.

The family’s demonstration of genuine love and concern for their nursing home relative made Poliakoff more willing to head to trial.

“The family was wonderful,” he said. “The children visited constantly and a day didn’t go by when one of the four children wasn’t there. They called on the phone constantly. They were just immersed in the patient’s care. We had wonderful presentations with videotapes of her and the grandchildren and great-grandchildren.”

Prior to trial, the parties remained far apart on settlement negotiations.

“They just didn’t view it as serious damages, and the highest offer was $100,000 in mediation and pretrial of $150,000. We would have settled for less than a million, but not in the range they offered,” he said.

Last November, a Spartanburg County jury ordered the facility to pay the woman’s estate $50,000 in actual damages and $1 million in punitives.

CLE Info

The April 25 CLE, which carries 6 credit hours, is sponsored by the National Business Institute. Other topics and speakers include:

* The Impact Of State And National Activity On Nursing Home Litigation: D. Nathan Hughey.

* Impact Of Tort Reform On Nursing Home Litigation: D. Nathan Hughey

* Initial Considerations And Pre-Trial Procedures: F. Matlock Elliott.

* Common Types Of Claims Being Filed And Litigated: S. Randall Hood.

* Effective Discovery In Nursing Home Litigation: Kimberly D. Barone.

* Ethical Considerations Related To Nursing Home Malpractice: Shannon L. Felder.

For more information, contact NBI at (800) 930-6182 or online at www.nbi-sems.com.

— Questions or comments may be directed to the writer at mike.dayton@sc.lawyersweekly.com.